Rape offenders can’t get presidential remissions: SC

Sets aside PHC verdict; upholds apex court’s 2010 judgment

ISLAMABAD:

Setting aside a judgment of the Peshawar High Court (PHC), the top court has maintained that presidential remission could not be granted to rape offenders.

A three-judge bench – comprising Justice Mushir Alam, Justice Yahya Afridi and Justice Qazi Muhammad Amin Ahmed – upheld a ten-year-old judgment of the Supreme Court on interpretation of the Article 45.

The Article 45 of the Constitution empowers the country’s president to grant pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority. Generally, the president announces remission on occasion of Eid, national day etc.

However, under the remission policy – formulated by the Ministry of Interior in August, 2009 – a class of convicts involved in "heinous crimes" had been excluded from the benefit of remissions. Most of these exclusions were backed by law, rule or an intelligible differentia.

In 2010, a seven-judge larger bench of the apex court had endorsed the government policy which clearly mentioned that no presidential remission will be granted to the rape convicts, serving sentence under Section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance 1979.

Authoring the recent judgment, Justice Yahya Afridi asked whether a petitioner Habibullah convicted and sentenced under Anti-Terrorism Act, 1997 and the Offences of Zina Ordinance, 1979  and presently serving his sentence, is entitled to be awarded remissions in his sentence under the law or otherwise.

The court noted that the PHC in its judgment had erred to the extent of granting remissions to the respondent under Article 45 of the Constitution.

The verdict said that remissions are permissible under the prison rules and he is entitled to be granted the same, but after serving his sentence for the conviction under the ATA.

Habib was booked and then tried by an anti-terrorism court in a case registered on February 8, 2003 under Sections 364-A, 506, 512 and 452 of the Pakistan Penal Code (PPC) and Section 13 of the West Pakistan Arms Ordinance, 1965 read with section 6 of the Anti-Terrorism Act, 1997.

After a regular trial, he was convicted by the trial court. The PHC and later the SC also dismissed his appeals against his conviction and sentence. The respondent moved the constitutional jurisdiction of the PHC seeking the grant of the remissions provided under the law.

The PHC gave a judgment in his favour. However, the Khyber Pakhtunkhwa (K-P) Inspector General of Jails challenged the high court verdict.

The apex court later sought a report regarding the latest position of the sentences and remissions earned by the respondent. According to the report, his probable date of release after earning the remissions under the prisons rules was on July 27 this year.

The court held that PHC judgment was modified by allowing the remissions to the respondent permissible under the rules, while denying him the remissions under Article 45 of the Constitution.

"In case the petitioner has served out his sentence given the remissions, so granted by this court, he be released from the jail forthwith, if not required to be detained in connection with any other case," said the SC judgment.